Will Bensouda rely on outlawed sect’s evidence?

December 10, 2013 2:50 pm

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Pan African Forum chairman David Matsanga. Photo/ FILE

By Capital FM, NAIROBI, Kenya Dec 10 – The Pan African Forum, an international Non-Governmental Organisation based in Kenya is accusing the International Criminal Court (ICC) Prosecutor of planning to rely on some of the witnesses who belong to an outlawed criminal organisation in President Uhuru Kenyatta’s trial.

In a letter to the prosecutor Fatou Bensouda, the lobby group says the planned use of Mungiki suspects in Kenyatta’s trial is likely to taint the case because of their links to a dreaded criminal organisation.

“I am seeking clarification as to whether Mungiki criminal elements, an outlawed sect in Kenyan law and Constitution are indeed witnesses in President Kenyatta’s case,” Pan African Forum chairman David Matsanga says in the letter dated December 10.

Matsanga argues that the use of people he terms as “contaminated witnesses and evidence” would amount to a miscarriage of justice.

“If this is true, then the only option left for the OTP on President Kenyatta’s case is to terminate it using Article 53 of the Statute and start afresh, given the new budget that was approved by the Assembly of States Parties,” he said.

President Kenyatta, whose trial is scheduled to start on February 5 in The Hague, appears to have gotten reprieve after the Assembly of States Parties amended the Rules of Procedure and Evidence, allowing him to skip much of the trial sessions to enable him fulfil his constitutional mandate.

In the letter, Matsanga argues that relying on evidence from Mungiki witnesses will not be different from OTP 4 James Maina Kabutu who was exposed as a liar.

“There is no difference between these new witnesses and OTP 4 James Maina Kabutu who I exposed as a liar,” Matsanga said, adding he will be filing a suit to seek judicial interpretation on the matter within 14 days.

Under the amended ICC rules, accused persons holding extraordinary positions in government, can be represented by counsel during their trial.

However, lawyers representing the accused persons must formally apply for the judges to consider putting into use the amended rules.

The rules were amended following a spirited push by a Kenyan delegation at the Assembly of States Parties held in The Hague between November 19 to 28, with the backing of African states.

The Kenyan delegation was led by Foreign Affairs Cabinet Secretary Ambassador Amina Mohamed, Attorney General Githu Muigai and Director of Public Prosecutions Keriako Tobiko.

“It is a milestone for Kenya, it is a major achievement for our leaders because he will now have time to deliver on his constitutional mandate,” Mohamed said, soon after the resolutions were passed unanimously.